9:06 pm - 11/26/2012
LEGAL EXPERTS WEIGH IN ON BERRY/AUBRY CUSTODY SAGA
Halle Berry is reportedly off to court this week in an effort to extend a temporary restraining order against her ex Gabriel Aubry, following the Thanksgiving punch-up with the actress’ current partner, actor Olivier Martinez.
If granted, Aubry, 36, could lose rights to see his four-year-old daughter, Nahla, for an indefinite amount of time, according to family law experts.
“A restraining order is a game-changer,” attorney Diana Mercer told Celebuzz. “If this restraining order holds up, the legal presumption is Gabriel can’t have joint custody of any kind.”
Mercer, author of Making Divorce Work: 8 Essential Keys for Resolving Conflict and Rebuilding Your Life, said the court would decide the fate of the Canadian-born father based on whether “your judgment is poor… and thus you can’t have legal or physical custody of the child.”
Berry’s lawyers have previously argued that Aubry has an uncontrollable temper.
The pair dated for four years before their split in 2010 and since have become embroiled in a bitter court battle over custody of Nahla.
Earlier this month, a judge denied the actress’ request to move to France with Nahla and Martinez — a decision widely considered a court victory for Aubry. He argued the move to France would have been punitive and was designed to stop him from having contact with his daughter.
“The biggest thing is going to be that restraining order hearing,” added Mercer.
She said Berry “can go back in (to court) and ask for modification of the moving order,” she said. “It would have been better if Olivier had stayed out of it. But thanks to O.J. Simpson, the police err on the side of caution.”
But Darren Kavinoky, a Los Angeles based criminal attorney, said the Cloud Atlas star shouldn’t expect the judge’s decision to be reversed completely.
“Just because he behaves badly, she would not be able to relocate to France. In other words, I wouldn’t go renew my passport now,” said Kavinoky.
But Kavinoky said Aubry’s ability to have custody of Nahla is in question.
“This whole incident gives rise to a renewed discussion… in terms of him being able to parent appropriately,” he said.
“I would expect that if she [Berry] is looking for renewed leverage, now she has it. This incident opens the doors to raise the issue about his capability of managing his own behavior.”
If the court believes that as a result of his inability to control his own impulses that his abilities to parent are compromised, then it’s possible that his visitations would be limited,” he said, “and it’s possible that he could only be with his kid under monitored supervision.
“What the court is going to be struggling with is asking themselves if his ability to control himself spills over to his parenting — or just limited to just the new man in his daughter’s life.
“Even if it’s found that in this instance he had too much testosterone for his own good, if I’m on his side, I’m going to argue ‘I may not play well with other grown-ups, but I can still be an effective, loving parent.’
“With this issue,” Kavinoky added, “ultimately the court has a lot of discretion to do what’s in the best interest of the child.”